Non-market sharing should not be “compensated for”, the “creative contribution” has other aims

The commons thread to my work on the non-market sharing of digital works between individuals1 is to defend that when carefully delineated, this sharing is a right whose definition lies outside the realm of copyright. As such it can not be the object of copyright-based compensation. I developed this point in Internet & Creation (in French, 2008), though the point was blurred because the amount of the new financing scheme I suggested remained based on a compensatory reasoning. In Sharing (February 2012), I separated the recognition of non-market sharing and the detailed design of the creative contribution. The latter was explictly based on the needs of creative and expressive activities of individuals and on providing a new source of support to production and added-value intermediaries. This separation became even more explicit in my recent elements for the reform of copyright and related cultural policies.

A new form of resource pooling is useful and needed to reward and support the creative activities that fuel digital culture. It can be socially accepted, provided one starts by recognizing that the right to non-market sharing is a primary condition of existence for digital culture, and only if one makes sure that the collected sums are truly received by contributors (authors, artists, technicians) and creative projects. There are many reasons to abstain from basing the amount of this new financing on a compensatory reasoning. Since most independent studies conclude that the non-market sharing of digital works between individuals is only responsible for a very limited part of the cultural industry problems in the digital world, adopting a compensatory viewpoint could ironically lead to very small amounts or to an unfounded capture of funds by media interests. In this post, I focus on another reason for rejecting a compensatory assessment of needs for a new financing source, which is how it would impact the cultural economy.

The non-market practices in the digital world have nothing to do with the “free-of-charge” logic to which property and scarcity ideologists want to assimilate them. Non-market practices are not free-of-charge since we allocate significant resources to make them possible, by buying tools, subscribing to services and investing our time. We do so to make possible for our productions, our exchanges and our daily creative activity in the digital world to occur without monetary transaction. We ensure in this manner the existence of a sphere in which social interactions develop under other bases than those of markets, contracts, transactions and property. This is not a matter of purity: the attention we give to others or receive from them, our collaboration, the reputation and credit of individuals, or gifts and friendship are not free from power relationships, just like any other social construct. However, this non-market sphere is precious, if only because it is different (from markets) and because the power to shape it is in the hands of participants.

Meanwhile, the commercial cultural economy deserves respect and merits interest, provided it is based on fair trade and cultural aims rather than on rent-seeking. This will happen only through a regulatory policy (are they any markets that don’t need one ?). I sketched its main principles in the “elements”. A key question naturally arises: under which condition can non-market activities and the cultural economy be synergetic?

A compensatory approach to the legal recognition of non-market sharing has been promoted in many forms since 2002. Other proposals (the Blur-Banff proposal, the global sponsorship, my own creative contribution proposal) have taken a non-compensatory appraoch to the financing of digital culture. Compensatory approaches could prove dangerous in two ways. First, an escalation of compensation requests could be fueled by the ideologic rejection of some media industry players to operate in an environment where digital files freely circulate between persons. We could end up with a € 20 contribution instead of the € 5 per household per month figure that results from a needs analysis for the digital creative activities of individuals and the need for a complementary financing for production projects and added-value intermediaries. The second risk is the cross-cannibilization between the commercial economy and non-market sphere.

If the right to non-market sharing is presented as a concession of right holders, a contract that they make directly or indirectly with citizens to allow them some uses that they would have the right to forbid, a sum that one pays “for downloading”, it would be logical for the same citizens to say “enough, we paid for it, bye”. In contrast, if a contribution answers the needs of the individuals themselves, considered as digital producers (even though only part of them will receive benefits from it), if this contribution aims at ensuring the existence of the creative works whose sharing defines culture, then, a true synergy between sharing and the cultural consumption can develop. Is this naïve? Only for those who do not live on the Internet. The result will not be to make the life of authors, artists, performers or other contributors easy. They face the increase in the number of contributors and quality works, while the attention time of the public can only grow slowly. However, the development of a sharing compatible resource pooling will create a better environement for creative activities and seal a new cultural social contract.